left eye on gub'ment

Teaching Top Dogs New Tricks

In the criminal justice system, the judge is not the head of the heap. Don’t be fooled by the black robe – the honorable so and so sitting on up high flexing his gavel is not the most powerful person in the system. The king of the hill is not the police chief or the cop on the beat or anyone in between. It’s not the prison warden. Not the sheriff. The top of the list is not even the legislature, maker of the laws.

The top dog? The prosecutor.

A prosecutor’s everyday decisions – about what to charge and how to prosecute – have a bigger impact than those of any other criminal justice official. Law professor and former public defender Angela J. Davis calls prosecutors “the most powerful officials in the criminal justice system.”

A big chunk of that power comes from keeping their decisions hidden from view. It’s no wonder prosecutors like to call the shots from behind the bushes, Dick Cheney style:

Even when they are doing the right thing, they prefer to do so quietly. When Bronx District Attorney Robert T. Johnson’s office decided in July to stop prosecuting people wrongfully arrested for trespass in public housing projects, there was no press conference. After years of prosecuting trespass charges, Johnson’s office realized that the police were stopping and questioning people walking through public housing properties without reasonable suspicion that the person had committed any crime. This is a common enough practice among NYPD officers conditioned by the department’s stop and frisk policies. It is also a violation of the U.S. Constitution.

As the Bronx’s top prosecutor, Johnson fired off a letter to the police letting them know that cops making these arrests would be interviewed before any prosecution would go forward. This is hardly radical stuff – it’s little more than checking in with the arresting officer to make certain the evidence is squared up before moving forward on a prosecution. The letter – and the new policy it described – was kept quiet for two months. Trespass arrests in the Bronx dropped almost 40%.

It’s too early to know how this conflict between Johnson and Bloomberg will play out. What the brouhaha brings up, though, is how unusual it is for a District Attorney to do what Johnson has done and set down a justice-seeking policy.

Prosecutors have a special role in the criminal process. As a representative of the state, their job is not to simply try and win a conviction, but to “do justice.” In theory, at least, this means tossing out a case whenever he/she does not believe guilt can be proven beyond a reasonable doubt. In practice, though, what usually happens is exactly the opposite. Prosecutors prioritize winning a conviction, and use their institutional advantages to do so. The resulting range of prosecutorial misconduct, from overcharging to hiding exculpatory evidence, is not only depressingly routine, but almost never successfully challenged.

It’s no wonder we simply do not think of doing justice as part of the DA’s function.

But why not? District Attorneys are elected officials, and there are many places where justice would be best and most efficiently served by the actions of a justice-seeking DA. Take the Court of Appeals for the Eleventh Circuit (please). This August, it upheld the parts of anti-immigrant laws in Georgia and Alabama that allow police officers to ask for immigration papers of people they stop. Rather than deal with the likelihood of racial profiling, the Court weaseled around and suggested it could take up the problem in a future lawsuit. In reality, a lack of investigative resources, procedural bars, and problems of proof make such a lawsuit unlikely.

A Georgia or Alabama DA, on the other hand, can take a cue from the Bronx and set a policy that requires an interview of the arresting officer before any prosecution involving an inquiry into immigration status moves forward. The chat with the arresting officer would simply ensure the traffic stop was not a result of racial profiling. Oh look, a 40% drop in pretextual traffic stops.

Along a similar vein, District Attorneys who know certain units of the police force routinely charge individuals who talk back with disorderly conduct or resisting arrest can require an interview before accepting the charge. Justice-seeking policies to not prosecute children as adults, to refuse charges where the only witness is a paid informant, or to set a limit on the number of people charged with low level drug offenses are all within the discretion and power of a District Attorney.

It may seem unlikely that chief prosecutors, hell bent on winning convictions, will pause in their daily warfare against defense attorneys to establish justice-seeking policies. But there are a few places beyond the Bronx – San Francisco, Houston – where the unlikely has happened. And we’ll never know where else and what else can happen until we call them out from behind the bushes and insist.